Ronquillo v. 2436436 Ontario Inc. o/a Healthplex Medical Services, 2016 HRTO 1640

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cristina Ronquillo

Applicant

-and-

2436436 Ontario Inc. o/a Healthplex Medical Services

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: December 20, 2016

Citation: 2016 HRTO 1640

Indexed as: Ronquillo v. 2436436 Ontario Inc. o/a Healthplex Medical Services

APPEARANCES

Cristina Ronquilo, Applicant ) Self-represented

Introduction

1In 2013, the applicant began working in a medical clinic called Healthplex Medical Centre & Walk-In Clinic (the “Clinic”) as the administrator for a family practice group. In October 2014, the Clinic was purchased by the respondent. The respondent operates the Clinic under the name Healthplex Medical Services. The owner of the respondent is Inderjeet Sidhu (“Sidhu”).

2The applicant alleges that she was discriminated against when the respondent reduced her hours of work after it became aware that she was pregnant. She filed this Application on June 16, 2015, alleging discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

No Response

3The Notice of Application was sent to the Clinic on July 6, 2015. It was not sent to Sidhu’s attention. On October 23, 2015, the Tribunal sent a letter to the respondent, to the attention of Sidhu, entitled “No Reponse to Notice of Application”. This letter warned the respondent of the consequences of not responding to an application (see Rule 5.5 of the Tribunal’s Rules of Procedure). The Tribunal sent a second follow-up letter to the respondent, to Sidhu’s attention, entitled “Second No Response to Notice of Application” on January 18, 2016. These letters were sent to the respondent at the address provided by the applicant and none were returned to the Tribunal as undeliverable. The respondent did not respond to any of these letters.

4By Interim Decision, 2016 HRTO 315, dated March 10, 2016, the Tribunal deemed the respondent to have accepted all of the allegations set out in the Application, to have waived all rights to notice and participation in the proceedings and to not be entitled to any further notice with respect to the Application.

5I am satisfied that the respondent received ample notice of this hearing, but has chosen to not participate. Where a respondent has not participated in a matter, the Tribunal will proceed to determine the Application in the absence of the respondent, which I have done in this case.

the facts

6The respondent purchased the Clinic in October 2014. After purchasing the Clinic, Sidhu made many changes to the workplace. Employees were terminated and the hours of other employees were reduced. Sidhu put in place a new manager by the name of Jaspreet Grewal (“Grewal”). After Sidhu took over, the applicant’s hours of work were reduced: she went from 40 hours per week to 30.

7The applicant informed Sidhu and Grewal that she was pregnant in November 2014. After disclosing her pregnancy, the applicant’s work hours were reduced even more. The applicant complained to Sidhu about the number of hours of work that she was receiving and asked for more hours. Sidhu told her that he was worried about her sickness. The applicant testified that she was not sick; she was pregnant.

8The applicant went on maternity leave on April 22, 2015. Her son was born on June 3, 2015. The applicant took early maternity leave because of the stress at work. The applicant felt that Grewal wanted her to leave as soon as possible. The applicant became very unhappy working at the Clinic.

9As a result of the reduction in hours, the applicant was not eligible for maternity leave benefits. The applicant began to take on part-time jobs after being on maternity leave for a couple of months. The applicant did not return to work for the respondent. There is no evidence that the applicant’s employment was terminated by the respondent.

Decision

10Section 5(1) of the Code prohibits discrimination on the basis of sex. The ground of sex includes pregnancy. The applicant claims that her work hours were reduced because of her pregnancy.

11The applicant adopted the facts set out in the Application. She gave further evidence during the hearing.

12The applicant testified that her hours were first reduced from 40 to 30 hours per week when the Clinic was sold to the respondent. This was before the applicant told Sidhu and Grewal that she was pregnant.

13The applicant’s hours were further reduced after the applicant told Sidhu and Grewal that she was pregnant. The applicant provided pay stubs for the period December 7, 2014 to March 29, 2015. During this period, the applicant worked 106 hours. Had the applicant worked her normal 30 hours per week, she would have worked approximately 480 hours. The difference in hours between the hours the applicant actually worked and the hours she would have worked if she had remained at 30 hours per week is 374 hours.

14When the applicant complained about the reduction in her hours, Sidhu told the applicant that he was worried about her sickness. I accept the applicant’s evidence that she was not sick, she was pregnant. Given the temporal connection between the applicant telling Sidhu and Grewal that she was pregnant and the reduction in hours, coupled with Sidhu’s comment that he was worried about her sickness (pregnancy), I find that the applicant’s pregnancy was a factor in the further reduction of her work hours. This finding is uncontested because the respondent chose not to defend the Application.

15For these reasons, I find the respondent has contravened section 5(1) of the Code.

remedy

16The applicant claims lost wages and lost maternity leave benefits in the Application.

17The applicant’s pay stubs indicate that she was paid an hourly wage of $11.00. For the period December 7, 2014 to March 29, 2015 the applicant worked 374 hours less than she would have worked had her hours not been reduced. This represents a financial loss of $4,114.00.

18The applicant did not produce pay stubs for the period prior to December 7, 2014 or after March 29, 2015. In the absence of evidence concerning the income earned by the applicant during these two periods, her lost wages cannot be calculated with any degree of certainty and will not be awarded for this reason.

19The applicant also claims compensation for lost maternity leave benefits. The applicant has provided insufficient information to support this claim. There is no information as to what benefits the applicant would have been entitled to. The applicant provided no information regarding her claim for maternity leave benefits and the denial of such claim. The applicant provided an Employment Insurance Benefit Statement (the “Statement”) dated May 10, 2015, but there is no information on the Statement. Further, the applicant testified that she worked a couple of months into her maternity leave. The applicant did not provide any documentation as to what her earnings were for this period. Earned income is relevant because it would have affected the applicant’s entitlement to maternity leave benefits. In the absence of concrete information concerning the applicant’s claim for lost maternity leave benefits, these benefits will not be awarded.

20The applicant also seeks monetary compensation pursuant to s. 45.2(1)1 of the Code, including monetary compensation (“damages”) for injury to dignity, feelings and self-respect in the amount of $30,000.00.

21In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal discussed at paras. 51-54 the factors to consider in making awards for injury to dignity, feelings and self-respect:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

The Tribunal’s jurisprudence … has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination…

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. …

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.

22In this Application, the information I regard as salient is as follows:

• The applicant testified about the stress that she experienced at the workplace trying to get more hours so that she would qualify for maternity leave benefits. She also testified about the stress trying to get a Record of Employment so that she could apply for maternity leave benefits. The applicant testified that she felt terrible and scared during this time and that she wanted to be able to count on maternity leave benefits;

• The applicant was pregnant at the time of these events. She was in a vulnerable position with respect to her employment and her entitlement to maternity leave benefits. The applicant testified that she began working 1.5 to 2 months into her maternity leave, presumably because she had no income;

• In the Application, the applicant stated the events affected her financially because she could not pay her bills or her school tuition fees, and emotionally, because she felt depressed, nervous and afraid to come to work.

23I find it appropriate to award $10,000.00 for the intangible losses flowing from the respondent’s discriminatory act. The caselaw suggests that this amount is within the range of awards for monetary compensation where an individual has experienced pregnancy-related discrimination during employment, as opposed to a discriminatory termination of employment.

order

24The Tribunal orders the following:

1. The respondent shall pay the applicant $4,114.00 in lost wages within 30 days of the date of this Decision.

2. The respondent shall pay the applicant $10,000.00 as monetary compensation for damages to her dignity, feelings and self-respect within 30 days of the date of this Decision.

3. Post-judgment interest shall be paid on any amounts not paid within 30 days of the date of this decision in accordance with the Courts of Justice Act, R.S.O. 1990, c. C. 43.